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2017 (2) TMI 415 - DELHI HIGH COURT

2017 (2) TMI 415 - DELHI HIGH COURT - TMI - Acquittal of the petitioner in the complaint case u/s 138 of the Negotiable Instrument Act - default for want of prosecution - Held that:- The acquittal of the petitioner accused in the complaint case under Section 138 of the NI Act was a result of nonappearance of the plaintiff and by resort to Section 256 of the Code. There was no determination, one way or another, of any issue of fact or law by the learned Magistrate, and there was no trial by the l .....

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laint. In my view, the further prohibition against the accused being tried on the same facts for any other offence would not apply to this fact situation. The relevant words “nor on the same facts … … …” clearly show that for latter part of Section 300(1) to apply, the “same facts” should have been tried and determined in the earlier trial conducted for any other offence. - Though the accused may have been technically “acquitted” in respect of one of such complaints, there would be no deter .....

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ccused is tried subsequently for a difference offence”. Since the “trial” in the complaint case under section 138 of the NI Act had not taken place, there would be no question of the petitioner accused being “tried again”. - In the present case, the learned Judicial Magistrate, Gurugram, was dealing with the complaint of the complainant u/s 138 of Negotiable Instrument Act. Merely because in the said complaint, the facts which constitute offences u/s 406/420 IPC may have been laid out, it do .....

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2017 - Dated:- 30-1-2017 - MR. VIPIN SANGHI J. Petitioner Through: Mr. Ravindra S. Garia, N.K. Khanna, Amitabh Nihar and Rakesh Bhati, Advocates Respondent Through: Mr. Rajesh Mahajan, ASC with Mr. Peeyush Bhatia, Adv for State with SI Sanjeev Kumar, PS Vivek Vihar VIPIN SANGHI, J. (OPEN COURT) 1. The petitioner has preferred the present writ petition to seek the quashing of FIR 616/2015 dated 09.07.2015 registered u/s 420/406/34 IPC at PS Vivek Vihar. The premise on which the said prayer is mad .....

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the same facts on the basis of which the FIR in question has been registered, by force of section 300 Cr PC the petitioner cannot be tried again in the aforesaid police case FIR registered against the petitioner vide FIR No. 616/2015. 2. Section 300(1) Cr PC is relevant for the present purpose and the same reads as follows: 300. Person once convicted or acquitted not to be tried for same offence. 1. A person who has once been tried by a Court of competent jurisdiction for an offence and convicte .....

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tioner, and the petitioner stands acquitted in respect of the offence u/s 138 of Negotiable Instrument Act, he cannot be charged and tried for the offence u/s 420/406/34 IPC. In support of his submission, learned counsel for the petitioner has sought to place reliance on the decision of the Supreme Court in Kolla Veera Raghav Rao v. Gorntla Venkateswara Rao & Anr., rendered by a bench of two learned Judges of the Supreme Court on 01.02.2011 in Crl A No.1160/2006. Since the said judgment is c .....

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the Constitution of India and Section 300(1) of Cr.P.C.. Article 20(2) states: no person shall be prosecuted and punished for the same offence more than once. On the other hand, Section 300(1) of Cr.P.C. States: 300. Person once convicted or acquitted not to be tried for same office__ (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be t .....

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nce', Section 300(1) of Cr.P.C. states that no one can be tried and convicted for the same offence or even for a different offence but on the same facts. In the present case, although the offences are different but the facts are the same. Hence, Section 300(1) of Cr.P.C. applies. Consequently, the prosecution under Section 420, IPC was barred by Section 300(1) of Cr.P.C. The Appeal is allowed and the impugned judgment of the High Court is set aside . 4. Mr. Mahajan has, however, opposed the .....

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Patel v. State of Gujarat & Anr., (2012) 7 SCC 621. Mr. Mahajan points out that in this case, the Supreme Court by a detailed decision, after reference to numerous earlier decisions including those of the Constitution Bench, held that -both for purposes of Article 20(2) of the Constitution of India, which incorporates the doctrine of autrefois acquit i.e. the doctrine against double jeopardy, and for the purpose of section 300 Cr PC, section 71 IPC, and section 26 of the General Clauses Act, .....

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had, therefore, urged that the subsequent decision would have to be considered as per incuriam in the light of the decision in Sundeep Kumar Bafna v. State of Maharashtra & Anr., 2014 (2) JCC 1264 and in particular para 15 thereof, wherein the Supreme Court, inter alia, observed that: It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the s .....

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2 SCC 703 : (2011) 1 SCC (Cri) 882 : (2011) 1 SCC (Civ) 547] is concerned. It has been held therein that once the conviction under Section 138 of the Negotiable Instrument Act has been recorded, the question of trying the same person under Section 420 IPC or any other provisions of IPC or any other statute is not permissible being hit by Article 20(2) of the Constitution and Section 300(1) CrPC . 7. Upon the aforesaid being pointed out, learned counsel for the petitioner has argued that in Sang .....

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sit in judgment over the subsequent decision of the Supreme Court in Sangeetaben (supra), and to examine whether Kolla Veera Raghav Rao (supra) has been considered in the correct perspective, or not. Since the earlier decision in Kolla Veera Raghav Rao (supra) has been expressly considered in the subsequent decision in Sangeetaben (supra), there is no question of invoking the principle laid down by the Supreme Court in Sundeep Kumar Bafna (supra). The decision in Sangeetaben (supra), therefore, .....

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commission of offence u/s section 8A of the Foreign Exchange Regulations Act, 1947. The plea of double jeopardy was raised by the accused seeking protection under Article 20(2) of Constitution of India. The Supreme Court held that the said plea of double jeopardy is based on the ancient maxim nemo debet bis punire pro uno delicto, that is to say, that no one ought to be punished twice for one offence. The plea of autrefois convict or autrefois acquit avers that the person has been previously co .....

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y involves an acquittal of the latter . 10. The Supreme Court also referred to the decision in Om Prakash Gupta v. State of U.P., AIR 1957 SC 458, and State of M.P. v. Veereshwar Rao Agnihotri, AIR 1957 SC 592, wherein it had been held that the prosecution and conviction or acquittal u/s 409 IPC does not debar trial of the accused on a charge under section 5(2) of the Prevention of Corruption Act, 1947, because the two offences are not identical in sense, import and content. The Supreme Court al .....

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of a conspiracy to commit a crime is a different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed, equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients. They are, therefore, quite separate offences. 11. The Supreme Court then proceeded to consider the decision in State of Bombay v. S.L. Apte, AIR 1961 SC 578. In .....

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laints might be substantially similar, the benefit of the ban cannot be invoked. It is, therefore, necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out. … *** 16. The next point to be considered is as regards the scope of Section 26 of the General Clauses Act. Though Section 26 in its opening words refers to the act or omission constituting an offence under two or more enactments , the .....

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harashtra, AIR 1965 SC 682, wherein the court held: 11. … The previous case in which this accused was convicted was in regard to a conspiracy to commit criminal breach of trust in respect of the funds of the Jupiter and that case was finally disposed of by this Court in Sardul Singh Caveeshar v. State of Bombay [AIR 1957 SC 747 : 1957 Cri LJ 1325] . Therein it was found that Caveeshar was a party to the conspiracy and also a party to the fraudulent transactions entered into by the Jupiter .....

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o support the motive for the second conspiracy. The question is whether that in itself would be sufficient to make the two conspiracies the one and the same offence. … 12. … The two conspiracies are distinct offences. It cannot even be said that some of the ingredients of both the conspiracies are the same. The facts constituting the Jupiter conspiracy are not the ingredients of the offence of the Empire conspiracy, but only afford a motive for the latter offence. Motive is not an .....

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te of A.P. v. Kokkiligada Meerayya, AIR 1970 SC 771, the Supreme Court culled out the important rules which emerge from section 403 Cr PC, 1898, which is para materia with section 300 of the present Code. The following rules were noted in the said decision: (1) An order of conviction or acquittal in respect of any offence constituted by any act against or in favour of a person does not prohibit a trial for any other offence constituted by the same act which he may have committed, if the court tr .....

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er with the consequences which resulted therefrom constituted a different offence, he may again be tried for that different offence arising out of the consequences, if the consequences had not happened or were not known to the court to have happened, at the time when he was convicted. (4) A person who has once been tried by a court of competent jurisdiction for an offence and has been either convicted or acquitted shall not be tried for the same offence or for any other offence arising out of th .....

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offence alleged against the petitioner in the FIR in question. Not having been tried for the same, the petitioner cannot be now tried for the said offence. This submission shall be dealt with a little later. Before considering the same, I may first proceed to conclude my dealing with Sangeetaben(supra). 15. There are several other decisions taken note of by the Supreme Court in Sangeetaben (supra). However, it is not necessary to refer to each one of them for the present purpose. It is the subm .....

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n(supra). In relation to this case, the Supreme Court observed in para 30 as follows: 30. In State of Rajasthan v. Hat Singh [(2003) 2 SCC 152 : 2003 SCC (Cri) 451 : AIR 2003 SC 791] this Court held that as the offence of glorification of Sati under Section 5 of the Rajasthan Sati (Prevention) Act, 1987, is different from the offence of violation of prohibitory order issued under Section 6 thereof, the doctrine of double jeopardy was not attracted for the reason that even if the prohibitory orde .....

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ts were the same in respect whereof the earlier trial was held and the subsequent trial was sought to be undertaken in respect of a different offence.. 18. I may now proceed to cull out the conclusion drawn by the Supreme Court in para 33, which reads as follows: 33. In view of the above, the law is well settled that in order to attract the provisions of Article 20(2) of the Constitution i.e. doctrine of autrefois acquit or Section 300 CrPC or Section 71 IPC or Section 26 of the General Clauses .....

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ssarily involves an acquittal of the latter charge .(emphasis supplied). 19. Pertinently, in Sangeetaben (supra), the issue of double jeopardy was raised before the Supreme Court in the context of a complaint u/s 138 of Negotiable Instrument Act being preferred and a prosecution being launched u/s 406/ 420 IPC on the same facts. In that respect, the Supreme Court observed: 37. Admittedly, the appellant had been tried earlier for the offences punishable under the provisions of Section 138 of the .....

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d. 38. In the case under the NI Act, there is a legal presumption that the cheque had been issued for discharging the antecedent liability and that presumption can be rebutted only by the person who draws the cheque. Such a requirement is not there in the offences under IPC. In the case under the NI Act, if a fine is imposed, it is to be adjusted to meet the legally enforceable liability. There cannot be such a requirement in the offences under IPC. The case under the NI Act can only be initiate .....

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e listed again . Can it be said that the petitioner was tried by the Judicial Magistrate who acquitted him by resort to Section 256 Cr.P.C.? The Supreme Court in Sangeetaben(supra) considered the decision of another Constitution Bench in S.A. Venkataraman v. Union of India, AIR 1954 SC 375, wherein the scope of the doctrine of double jeopardy enshrined under Article 20(2) of Constitution of India was considered. In that decision, the Constitution Bench held that there must have been both- prosec .....

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returned by the concerned court while acquitting the petitioner. 22. Though the petitioner stands technically acquitted by application of Section 256 CrPC, his acquittal is not after a trial. Thus, in my view, it cannot be said that the petitioner is a person who has once been tried by a Court of Competent jurisdiction … … … . All that can be said is that he is a person who has been acquitted. Acquittal may result with, or without, a trial - like in the present case. 23. Tho .....

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trial and tried came to be considered with reference to the procedure contained in Section 494 of the Cr PC . Their Lordships observed. The words tried and trial appear to have no fixed or universal meaning. No doubt, in quite a number of sections in the Code to which our attention has been drawn the words tried and trial have been used in the sense of reference to a stage after the inquiry. That meaning attaches to the words in those sections having regard to the context in which they are used. .....

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ied and trial . I will notice some of them. Trial is the formal examination of the matter in issue in a case before a competent tribunal for the purpose of determining such issue: the mode of determining a question of fact in a Court of law: (Webster's Third New International Dictionary, Volume II, Page 2439). 12. Trial 1. Law. The examination and determination of a cause by a Judicial Tribunal; determination of the guilt or innocence of an accused person by a Court . (The Oxford English Dic .....

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tion and all matters in difference is not a trial within Attendance of Witnesses Act, 1954, (Stroud's Judicial Dictionary, 3rd Edition, Volume 4, Page 3092). 15. These words have been considered in some judicial decisions. I have already noticed the Supreme Court decision above where for the purposes of Section 494 of the Cr PC in the words tried and trial enquiry was held to be included by the Supreme Court. In Sajjansingh v. Bhogilal, AIR 1958 Raj 307, this Court has observed: Broadly spea .....

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tions in fact begins in the accepted sense of that term when the charge is read and explained to the accused and he is asked whether he is guilty or claims to be tried . 17. Broomfield J. in Dagdu Govindset v. Punja Vedu, AIR 1937 Bom 55, observed. But according to my experience of the administration of Criminal justice in this Presidency, which is not inconsiderable, the Courts have always accepted the definition of trial which has been given in (1898) 25 Cal 863, that is to say, trial has alwa .....

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lersteiner Vs. Moir (No.2), (1975) QB 373. In Wallersteiner (supra), Lord Denning held as follows: I think that that note may be putting too narrow a construction on the word tried. It seems to me that, after all the evidence and arguments which were heard in this case, it could well be said that these were proceedings tried in a court of record. Similarly with proceedings under R.S.C., Ord. 14. But it is unnecessary to go into this for this simple reason: we did not order interest to be paid un .....

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rmined in that context, and here the court has decided that there is no defence. 27. The discussion in Gardner Steel Ltd. (supra) had arisen in relation to the plaintiff s claim for interest in a summary proceeding. To be able to claim interest, it was essential that the proceeding should have been tried in a Court of record, as required by Section 3 of the Law Reform (Miscellaneous Provisions) Act, 1934. The Court of Appeal held the plaintiff entitled to interest on a conclusion that even thoug .....

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ue in a case. It has been understood to mean the proceedings which commences when the case is called on with the Magistrate on the Bench; the accused in the dock, and; the representatives of the prosecution and defence - if the accused be defended, present in Court for the hearing of the case. Lastly and most importantly, the words trial and tried have no fixed or universal meaning. These are words which must be considered with regard to the particular context in which they are used and with reg .....

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ered- either on facts, or in law by the learned Magistrate who had acquitted the accused. The result of such acquittal, by force of Section 300(1), would be that while such … … … acquittal remains in force , the petitioner accused shall not be liable to be tried again for the same offence, namely the offence under Section 138 of the NI Act in relation to the dishonour of the cheque(s) which formed the basis of the complaint. In my view, the further prohibition against the ac .....

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ial. The Supreme Court observed: 23. This Court has time and again explained the principle of issue estoppel in a criminal trial observing that where an issue of fact has been tried by a competent court on an earlier occasion and a finding has been recorded in favour of the accused, such a finding would constitute an estoppel or res judicata against the prosecution, not as a bar to the trial and conviction of the accused for a different or distinct offence, but as precluding the acceptance/recep .....

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g of fact recorded by a competent court in a previous trial on a factual issue. (Vide Pritam Singh v. State of Punjab [AIR 1956 SC 415 : 1956 Cri LJ 805] , Manipur Admn. v. Thokchom Bira Singh [AIR 1965 SC 87 : (1965) 1 Cri LJ 120] , Workmen v. Gujarat Electricity Board [(1969) 1 SCC 266 : AIR 1970 SC 87] and Bhanu Kumar Jain v. Archana Kumar [(2005) 1 SCC 787 : AIR 2005 SC 626] . (emphasis supplied). 30. I may, at this stage, test the aforesaid proposition by reference to a realistic situation. .....

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were to be dismissed and the accused acquitted by resort to Section 256 Cr.P.C., could it be said that since the other complaints- in respect of the other dishonoured cheques were issued in relation to the same transaction, i.e. on the same facts , they would also be liable to be dismissed by resort to Section 300(1) Cr.P.C.? In my view, the answer is an obvious NO . This is simply for the reason that though the accused may have been technically acquitted in respect of one of such complaints, th .....

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s of fact when the accused is tried subsequently for a difference offence . Since the trial in the complaint case under section 138 of the NI Act had not taken place, there would be no question of the petitioner accused being tried again . 31. Mr. Mahajan has also pointed out another important aspect of the matter. He submits- and in my view rightly so, that the words used in section 300 Cr PC on the same facts for any other offence ... ... have to be read and understood in the context of the re .....

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may be tried at once; or he may be charged in the alternative with having committed some one of the said offences. (2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub- section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it. 32. Section 221 Cr PC contemplates a situation where a single act, o .....

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h he might not have been charged, he may be convicted of the offence, which he is shown to have committed, though not charged with it. In the present case, it is not even the submission of the petitioner that Section 221 CrPc was involved or applicable. 33. In the present case, the learned Judicial Magistrate, Gurugram, was dealing with the complaint of the complainant u/s 138 of Negotiable Instrument Act. Merely because in the said complaint, the facts which constitute offences u/s 406/420 IPC .....

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